1. The question of law which arises in this appeal is whether plaintiff Hair who was adopted on 27-7-1956 by Rukhmabai widow of Totaram who died in 1952, could divest Rukhmabai of the property which had absolutely vested in her by virtue of the provisions of Section 14 of the Hindu Succession Act, 1956. The question arise thus: Totaram, the original owner of field survey No. 67/1 situated at mouza Borkhedi, Taluq Malkapur, District Buldana, died in 1953 leaving behind Rukhmabai, defendant No.1, The Hindu Succession Act came into force on 17-6-1956. Plaintiff Hari was adopted by Rukhmabai on 27-7-1956, and after the adoption of the plaintiff, Rukhmabai sold filled survey No. 67/1 to the defendants Nos. 2 and 3 on 10-2-1957. These defendants in their turn gifted the said field to the defendant No.4 on 14-2-1957 and the defendant No.4 is in actual possession of the property. Plaintiff Hari brought his suit for possession of field survey No. 67/1 alleging that the sale deed in favour of the defendants Nos. 2 and 3 was illegal and without any legal necessity and was executed to defeat the claim of the plaintiff. According to him, the sale deed was therefore, not binding on him and that since the defendant No. 1 had remarried., she, had lost all her interest in the suit field and the plaintiff alone was entitled to claim possession. The plaintiff also denied the validity of the sale in favour of the defendant Nos. 2 and 3 and the gift in favour of the defendant No. 4. The suit was mainly contested by the defendants Nos.2 to 4. According to them, in view of the provisions of Section 14 of the Hindu Succession Act, the defendant No.1 had become the absolute owner of the field even before the adoption of the plaintiff. They also denied the plaintiff's adoption. They also denied that the sale was no for legal necessity or that it was not binding on the plaintiff.
The trial Court held that the plaintiff was duly adopted by the defendant No.1 on 27-7-1956 and that he had become the owner of the suit property by virtue of being the adopted son of Totaram. It held that as a result of the adoption, the defendant No.1 was divested of the suit property and she had, therefore, no right to sell the suit field to the defendants Nos. 2 and 3 and consequently the sale were not binding on the plaintiff. The plaintiff was, therefore, held entitled to possession. The trial Court did not given any finding on the issue whether the sale was for legal necessity or not. An inquiry into profits from the date of suit till delivery of possession was also ordered by the trial Court.
2. The defendants Nos. 2 and 4 filed an appeal against the decision of the trail Court. The lower appellate Court also took the view that the adoption of the plaintiff had the effect of divesting the defendant No.1 of her complete ownership of the suit land, and the plaintiff, therefore, became entitled to claim ownership of the suit land. Since the lower appellate Court took the view that the defendant No. 1 had no right to self away the suit property, the appeal field by the defendants Nos. 2 to 4 was dismissed. On the issue of legal necessity the lower appellate Court found that legal necessity was not proved. The defendants Nos. 2 and 4 have now filed this second appeal.
3. It is contended on beheld of the appellants on the authority of the decision in Yamunabai v. Ram Maharaj, AIR 1960 Bom 463 that the adoption of the plaintiff having taken place after the defendant No. 1 had become absolute owner of the property left behind by Totaram, by virtue of the provisions of the Hindu Succession Act which came into force on 17-6-1956, the adoption did not have the effect of divesting the defendant No. 1 of the property to which she had acquired absolute title. The learned counsel appearing on behalf of the plaintiff-respondent No. 1 relied on the decision of the Supreme Court in Krishnamurthi v. Dhruwaraj, : 2SCR813 and contended that the view taken by the lower Courts was based on this decision and that they had rightly held that the adoption of the plaintiff had the effect of divesting the defendant No.1 of the property to which she had succeeded on the death of her husband. There is no dispute that plaintiff Hari was adopted by Rukhmabai after the Hindu Succession Act had already come into force. By virtue of the provisions of Section 14 of the Act, the limited estate which Rukhmabai took in the property left behind by her husband Totaram who died in 1953 was held by her absolutely on the date of the adoption of the plaintiff. There is nothing in the provisions of the Hindu Succession Act which indicated that the absolute estate contemplated by Section 14 could in any way be affected by an adoption made after the estate had absolutely vested in the widow. This question came up for consideration before a Division Bench of this Court in Yamunabaf's case AIR 1960 Bom 463 (cited supra),In that case a Hindu widow had succeeded to an Inam estate left by her co-widow A as her nearest heir. Prior to her death in 1949 A had adopted the defendant, but as the necessary sanction of the Kolhapur State authorities to the adoption had not been then obtained, Yamunabai became entitled by inheritance to A's estate. The sanction ex-post-facto was accorded to the adoption in 1958 by the State of Bombay, i.e. after Hindu Succession Act had come into force. The question which arose before the Division Bench was whether the estate possessed by Yamunabai which had become absolute by virtue of provision of Section 14 of the Hindu Succession Act was liable to be divested on the grant of a sanction 14 of the Hindu Succession Act was liable to be divested on the grant of sanction ex-Post -facto to an adoption in the family to which the defendant belonged. The Division Bench defendant belonged. The Division Bench held that the estate possessed by Y which became absolute by virtue of Section 14 was not liable to be divested on the grant of a sanction ex-post-facto to the defendant's adoption. It was also held that the sanction ex-post--facto to an adoption may have the effect of divesting property vested in another person by inheritance from the sole surviving coparcener, or a limited owner but that rule in so far as it was inconsistent with Section 14 was superseded by clause (b) of Section 4. Referring to the scope of Section 14 of the Hindu Succession Act, the Division Bench observed in paragraph 7:
'The estate held by a Hindu, who is a sole surviving coparcener in a joint Hindu family is, it is true, liable to be restricted by birth or adoption, and such new coparcener acquires and interest in the entire estate equal to the interest in the entire estate equal to the interest in the estate held by the existing corparcener. But that incident of the estate does not in our judgment . justify the imposition of a limitation restricting the connotation of the expression 'full owner' used in Section 14 of the Hindu Succession Act. Full ownership contemplated by Section 14 of the Succession Act is not made by the legislature subject to any incident of dive station by implied, it will cut across the estate and the estate will not be regarded as of a full owner within the meaning of Section `14 of the Act.' The above observations are, therefore, clear authority for the proposition that an estate which is once vested in a female Hindu as full owner by virtue of the provisions of Section 14(1) is not subject to the incident of dive station in case the provisions of Section 14(1) is not subject to the incident of dive station in case the widow adopts a son after she has already become a full owner. It will not be out of place to mention that this principle has been given effect to in Section 12 of the Hindu Adoptions and Maintenance Act, 1956, which came into force on 21-12-1956, where while setting out the effects of adoption the Legislature has clearly provided in clause (c) of the proviso to this section that the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
The adoption of the plaintiff in the instant case has no doubt taken place before the Hindu Adoptions and Maintenance Act came into force on 21-12-1956: but since, as already come into force and since, as already pointed out, the nature of the estate created by Section 14 is not made by the legislature subject to any incident of dive station by adoption, it must be held that the plaintiff was not entitled to sue for possession on the ground that the sale in favour of the defendants Nos. 2 and 3 and the gift by them in favour of the defendant No.4 were not binding on him.
4. The decision of the Supreme Court in Krishnamurthi's case : 2SCR813 cited supra relied upon by the plaintiff is clearly distinguishable. That was not a case dealing with an adoption by a widow after the coming into force of the Hindu Succession Act. The facts in that case were that B predeceased his father N in 1882 leaving behind his widow T.N. died in 1892 leaving behind his widow T.N. died in 1892 leaving behind his daughter K, who succeeded to his property as full owner. K. herself died in 1933 and her son V who had succeeded to her property died in 1934 leaving behind two sons. B's widow T adopted, the respondent, in 1945, and T thereupon brought a suit for recovery of the properties from the appellants who were the great-grandsons of N, the father-in-law of T. It was held by the Supreme Court that the suit as his adoption had the effect of divesting the appellants of the property inherited form K, and it was pointed out that though according to the Hindu Law prevailing in the area K had succeeded to the property of her father N as full owner, her title was defensible on T, the widow of B, adopting a son to her husband. It was also held that the title of the appellants who were claiming under K was also defensible on the adoption of a son by. T. and the fact that K inherited the property of her father absolutely did not change the character of the property from coparcenary property to self-acquired property of K so long as T, the widow in the family, existed and was capable of adopting a son who becomes a coparcener. The decision in the Supreme Court case did not turn upon the question as to the effect of the adoption of a son by a widow who originally held a limited estate under the Hindu Law but whose estate was converted into an absolute one by virtue of the provisions of Section 14 of the Hindu Succession Act before the adoption. The decision of the Supreme Court in Krishnamurthi's case, : 2SCR813 is, therefore, of no assistance to the plaintiff.
5. That was the only point urged in the appeal. In the view which I have taken the judgments and decrees of the lower Courts must be set aside and the plaintiff's suit must stand dismissed with cossets throughout. The appeal is thus allowed.
6. Second appeal allowed.